Royal Love’s Facebook Query:
Because of the religious roots of marriage, do you think it would be correct to view the entire establishment as unconstitutional?
Jim’s Response:
Royal, there are two huge reasons why this view would be incorrect.
First, it could be safely argued that laws against murder, rape, theft, and many others find their roots in moral positions promoted by religions. The vast majority of moral positions and the laws created therefrom can be found to be rooted in religion, so under your rule, they would all be unconstitutional. Your major premise is untenable. But this is not the big problem here.
Second, where in the constitution does it bar anything in our lives because it has some association (roots or otherwise) with religion? What does the constitution bar in relation to religion? The First Amendment bars 1) congress from making laws promoting and protecting one religion over another and 2) congress from making laws prohibiting citizens from freely exercising their religions. In general, the constitution tells congress to leave religion alone… to let people express and live out their religious beliefs as they see fit without federal government interference or promotion.
There are many marriages that have be created by people who place no religious value on their marriage. There are many many marriages that have be created by people who place significant religious value on their marriage. All states allow marriages to be established with or without any religious trappings or authority. How therefore, do states violate either of the two restrictions above by permitting marriages?
The 10th Amendment states, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The power to regulate marriage is not given to the federal government. Therefore, I personally believe that marriage, per se, is not an institution directly governed by federal jurisdiction and therefore states are free to determine marriage laws.
This means that individual states have the authority to establish and regulate marriage as those citizens, through their elected representatives, to do so as they choose. If Arizona wants to establish certain criteria for marriage and Tennessee wants to use different criteria, then they are free to do so.